Karnataka High Court
Sri. Abdul Rauf Qureshi vs Deputy Commissioner And Ors on 11 January, 2021
Author: Suraj Govindaraj
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
WRIT PETITION No.226372/2020 (GM-RES)
C/W
WP No.226663/2020 (GM-RES)
WP No.200010/2021 (GM-KSR)
WP No.200011/2021 (GM-KSR)
IN W.P.NO.226372/2020
Sri Abdul Rauf Qureshi
Aged about : 35 years
Occ: Copper and brass merchant
R/O Kalayigalli
Tq: & Dist: Kalaburagi.
... Petitioner
(By Sri V.K.Nayak, Advocate)
AND:
1. Deputy Commissioner
Kalaburagi
Tq: & Dist: Kalaburagi-585 102
2. President
Hyderabad Karnataka
Chamber of Commerce and
Industry, Kalaburagi-585 102
2 WP 226372/2020 &
Connected Matters
3. Secretary
Hyderabad Karnataka
Chamber of Commerce
And Industry
Kalaburagi-585 102.
... Respondents
(Smt. Anuradha M. Desai, GA for R1;
Sri Amaresh S. Roja, Advocate for R3;
Sri Arunkumar Amargundappa, Advocate for R2)
This Writ Petition is filed under Article 226 of the
Constitution of India, praying to issue a writ of Certiorari
by quashing the order dated 30.07.2020 bearing
No.Kamm/chuna/sama/2019-20 passed by the 1 st
respondent found at Annexure-C and also quash the
consequential notice dated 18.08.2020 bearing
No.HKCCI/2020-21/1017 found at Annexure-D issued by
the 3rd respondent based on order dated 30.07.2020;
Issue a writ of Mandamus to respondent No.1 by directing
him to pass suitable directions/orders to reschedule the
calendar of events for the post of office bearers and
members to the Managing Committee of Hyderabad
Karnataka Chamber of Commerce and Industry, Kalaburagi
by fixing the date for filing of nomination and allow this
writ petition with costs.
IN W.P.No.226663/2020
Sri Md. Hyder Adil-Ur-Rehman
Aged about :33 years
Occ: Business
R/O Hussain Garden
Kalaburagi
Tq: & Dist: Kalaburagi
... Petitioner
(By Sri V. K. Nayak, Advocate)
3 WP 226372/2020 &
Connected Matters
AND:
1. Deputy Commissioner
Kalaburagi
Tq: & Dist: Kalaburagi
2. President
Hyderabad Karnataka
Chamber of Commerce and
Industry, Kalaburagi
3. Secretary
Hyderabad Karnataka
Chamber of Commerce
And Industry
Kalaburagi
... Respondents
(Smt. Anuradha M. Desai, GA for R1;
Sri Arunkumar Amargundappa, Advocate and
Sri Amaresh S. Roja, Advocates for R2 and R3)
This Writ Petition is filed under Article 226 of the
Constitution of India, praying to issue a writ of Certiorari
by quashing the order dated 30.07.2020 bearing
No.Kamm/chuna/sama/2019-20 passed by the 1 st
respondent found at Annexure-C and also quash the
consequential notice dated 18.08.2020 bearing
No.HKCCI/2020-21/1017 found at Annexure-D issued by
the 3rd respondent based on order dated 30.07.2020;
Issue a writ of Mandamus to respondent No.1 by directing
him to pass suitable directions/orders to reschedule the
calendar of events for the post of office bearers and
members to the Managing Committee of Hyderabad
Karnataka Chamber of Commerce and Industry, Kalaburagi
by fixing the date for filing of nomination and allow this
writ petition with costs.
4 WP 226372/2020 &
Connected Matters
IN W.P.NO.200010/2021
BETWEEN:
1. Sri Baburao Bedre
S/o Shivaji
Aged about : 52 years
Occ: Trader
R/O Shahabazar
Kalaburagi
Tq: & Dist: Kalaburagi.
2. Sri Amruth
S/o Chandramappa Madlunki
Age: Major, Occ: Trader
R/o P.No.8596 KIADB
Industrial Area Nandur
Kalaburagi-585 102
3. Shreyas Industries
Rep. by its
Sri Sriram S/o Jotiba Bhise
Aged about 50 years
R/o Revansiddeswara Colony
Kalaburagi -585 101
Tq. & Dist. Kalaburagi
4. Sri Vijaymore
S/o Vithal Rao More
Aged about 42 years
Occ: Trader
R/o New Raghvendra Colony
Kalaburagi-585 101
Tq. & Dist. Kalaburagi
5. Sri Shamrayagowda
S/o Sangan Gowda Patil
Aged about 48 years
Occ: Trader
5 WP 226372/2020 &
Connected Matters
R/o Vidhyanagar
Kalaburagi-585 101
Tq. & Dist. Kalaburagi
6. Sri Lingaraj E. Bhavikatti
S/o Eshwarappa
Aged about 40 years
Occ: Trader
R/o Jagat Circle, Main Road
Kalaburagi-585 101
Tq. & Dist. Kalaburagi
7. Sri Vijaykumar B. Patil
S/o Basavaraj Gowda Patil
Aged about 45 years
Occ: Commission Agent
R/o Mahalakshmi Layout
Kalaburagi-585 101
Tq. & Dist. Kalaburagi
8. Sri Santosh More
S/o Late Vittal Rao More
Aged about 41 years
Occ: Trader
R/o New Raghvendra Colony
Kalaburagi-585 101
Tq. & Dist. Kalaburagi
9. Sri Rajshekar Tengli
S/o Shantamallappa Tengli
Aged about 45 years
Occ: Trader
R/o Saraf Bazar, Mukthmpur
Kalaburagi-585 101
Tq. & Dist. Kalaburagi
10. Sri Raojirao
S/o K. Nagbujangi
Aged about 46 years
6 WP 226372/2020 &
Connected Matters
Occ: Trader
R/o Gunj Area, Kalaburagi
Kalaburagi-585 101
Tq. & Dist. Kalaburagi
11. Sri Hanmanthraya M. Tatanalli
S/o Malleshappa
Aged about 52 years
Occ: Industrialist
R/o Plot No.81/2
Nandur Industrial Estate
Shahbad Road
Kalaburagi-585 101
Tq. & Dist. Kalaburagi
12. Sri Shivsharanappa Madguguniki
S/o Chandramappa
Aged about 58 years
Occ: Industrialist
R/o Nandur Industrial Estate
Kalaburagi-585 101
Tq. & Dist. Kalaburagi
... Petitioners
(By Sri V.K.Nayak, Advocate)
AND:
1. Deputy Commissioner
Kalaburagi
Tq: & Dist: Kalaburagi-585 102
2. President
Hyderabad Karnataka
Chamber of Commerce and
Industry, Kalaburagi-585 102
3. Secretary
Hyderabad Karnataka
7 WP 226372/2020 &
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Chamber of Commerce
And Industry
Kalaburagi-585 102.
... Respondents
(Smt. Anuradha M. Desai, GA for R1;
Sri Amaresh S. Roja, Advocate for R3;
Sri Arunkumar Amargundappa, Advocate for R2)
This Writ Petition is filed under Article 226 of the
Constitution of India, praying to issue a writ of Certiorari
by quashing the order /permission bearing No.
Kum/Election/General/82/2019-2020 dated 03.11.2020
passed by the 1st respondent found at Annexure-G; Issue a
writ of Mandamus to respondent No.1 by directing him to
pass suitable directions/orders to reschedule the calendar
of events for the post of office bearers and members to the
Managing Committee of Hyderabad Karnataka Chamber of
Commerce and Industry, Kalaburagi by fixing the date for
filing of nomination and allow this writ petition with costs.
IN W.P.NO.200011/2021
BETWEEN:
1. Venugopal P. Reddy
S/o Narasimharao
Aged about: 51 years
Occ: Business
R/o Naman Traders
Near Goa Hotel, Kalaburgi
Kalaburgi 585102
2. Mohammed Zamiruddin
S/o Raja Mohammed
Aged about: 52 years
Occu: Business
R/o: Mrs. Citizen Plastics
2nd Stage, Kapanur
Kalaburgi 585102
8 WP 226372/2020 &
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3. Rajesh Hakeem
S/o Baburao Hakeem
Aged about: 49 years
Occu: Business
R/o: Sagar Electricals
Mominpura
Kalaburgi 585102
4. Sangamanath R. Avanti
S/o Rudrappa
Aged about: 46 years
Occu: Business
R/o: Nandi Agencies
Kalaburagi 585102
5. Vinodkumar
S/o Bheemanna
Aged about: 52 years
Occu: Business
R/o: Nandin Lubricants
Kalaburagi 585102
6. Sharanabasappa S. Ambesange
S/o Srimanth
Aged about: 50 years
Occu: Business
R/o Info Thing Technologies
Pvt. Ltd, Super Market
Kalaburagi 585102
7. Satish S. Sagar
S/o Srinivas
Aged about: 55 years
R/o Anjanadri Petroleum
Ravoor, Dist: Kalaburgi
Kalaburagi 585102
8. Rajashekhar S. Tengli
9 WP 226372/2020 &
Connected Matters
S/o Shanthmallappa
Aged about: 50 years
Occ: Business
R/o: Tengli Jewellers
Saraf Bazar, Kalaburgi
Kalaburagi 585102
9. Mohammed Mirajuddin
S/o Mohammed Sirajuddin
Aged about: 49 years
Occ: Business
R/o: Sameer Silk House
KBN Complex
Kalaburagi 585102
10. Shivasharanappa H. Birbitte
S/o Hanumanthappa
Aged about: 51 years
Occu: Business
R/o: S S Birbitte Company,
Nehru Gunj, Kalaburagi
Kalaburgi 585102
11. Manik S Mugale
S/o Sharanappa
Aged about: 48 years
Occu: Business
R/o: Hand Work Paper Industry
K.S.S.I.D.C. Kapanur
Kalaburgi 585102
12. Mohammed S/o Usman
S/o Md. Hussain
Aged about 49 years
Occ: Business
R/o Gulbarga Mill Owners Associations
K.S.S.I.D.C. Kalaburagi
Kalaburagi-585 102
10 WP 226372/2020 &
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13. Basavaraj S. Salakki
S/o Shivalingappa
Aged about 52 years
Occ: Business
R/o Amareshwar Surgical & Pharma
Century Complex, Kalaburagi
Kalaburagi-585 102
14. Narsappa G. Chitaguppa
S/o Gundappa
Aged about 54 years
Occ: Business
R/o Sri Balaji Dall Mill
Kalaburagi-585 102
15. Dayanand B. Pulari
S/o Basavaraj
Aged about 49 years
Occ: Business
R/o Kirani General
Brahmpur, Kalaburagi
Kalaburagi-585 102
16. Shivakumar K. Hiremath
S/o Kallayanayya
Aged about 48 years
Occ: Business
R/o Sri Sharana Agencies
Kalaburagi-585 102
17. Chandrakanth M. Minajagi
S/o Mallikarjun
Aged about 53 years
Occ: Business
R/o Manikeshwari Pulses
Kapanur, 2nd Stage
Kalaburagi-585 102
11 WP 226372/2020 &
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18. Arif Maniyar
S/o Md. Abid Baig
Aged about 52 years
Occ: Business
R/o Adarsha Traders
Bus-Stand Road
Kalaburagi-585 102
19. Khalid Hussain
S/o Bhakar Hussain
Aged about 50 years
Occ: Business
R/o Naaz Traders
Jewargi Cross
Kalaburagi
20. Suresh S. Narashetty
S/o Shanmukappa
Aged about 51 years
Occ: Business
R/o New Sangameshwar
Auto Traders
Main Road, Kalaburagi
21. Prashant Kanaki
S/o Rajshekar
Aged about 54 years
Occ: Business
R/o Basava Cement Agencies
V.V.Hostel Complex
Kalaburagi-585 102
22. Vinod C. Alandkar
S/o Chandrakanth
Aged about 56 years
Occ: Business
R/o Sri Sai Hydraulics
V.V.Hostel Complex
Kalaburagi-585 102
12 WP 226372/2020 &
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23. Vishwanath Sangappa Korwar
S/o Sangappa
Aged about 57 years
Occ: Business
R/o Mysore Medical Hall
Opposite General Hospital
Kalaburagi-585 102
24. Mahesh B. Nadagouda
S/o Basavanthrao
Aged about 51 years
Occ: Business
R/o Kamadenu Medicals
Sedam Road
Kalaburagi-585 102
25. Manohar B.Guttedar
S/o Bassayya Guttedar
Aged about 50 years
Occ: Business
R/o Ishwari Stone Crushing
Tavarageri, Kalaburagi-585 102
... Petitioners
(By Sri V.K.Nayak, Advocate)
AND:
1. Deputy Commissioner
Kalaburagi
Tq: & Dist: Kalaburagi-585 102
2. President
Hyderabad Karnataka
Chamber of Commerce and Industry
Kalaburagi-585 102
13 WP 226372/2020 &
Connected Matters
3. Secretary
Hyderabad Karnataka
Chamber of Commerce and Industry
Kalaburagi-585 102.
... Respondents
(Smt. Anuradha M. Desai, GA for R1;
Sri Amaresh S. Roja, Advocate for R3;
Sri Arunkumar Amargundappa, Advocate for R2)
This Writ Petition is filed under Article 226 of the
Constitution of India, praying to issue a writ of Certiorari
by quashing the order /permission bearing No.
Kum/Election/General/82/2019-2020 dated 03.11.2020
passed by the 1st respondent found at Annexure-G; Issue a
writ of Mandamus to respondent No.1 by directing him to
pass suitable directions/orders to reschedule the calendar
of events for the post of office bearers and members to the
Managing Committee of Hyderabad Karnataka Chamber of
Commerce and Industry, Kalaburagi by fixing the date for
filing of nomination and allow this writ petition with costs.
These petitions coming on for orders this day, the
Court made the following:
ORDER
1. The petitioners in these matters claim to be the
members of the third respondent, Hyderabad
Karnataka Chamber of Commerce and Industries,
Kalaburagi (hereinafter referred to as 'HKCCI' for
short).
14 WP 226372/2020 &
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2. Facts:
2.1. The third respondent issued an election
notification dated 06.03.2020 for the election
of office bearers and members of the Managing
Committee, as regards the election to be held
on 29.03.2020 from 8.00 a.m. to 5.00 p.m.,
calendar of events for the said election is fixed
as under:
a. Issue of Nomination 11th March 2020 to 14th
Forms and Filing of March 2020 from 11.00 AM
Nomination Papers to 5.00 PM
(in person)
b. Last date for filing of Saturday the 14th March
nomination papers 2020 up to 5.00 PM
c. Scrutiny of Nomination Sunday the 15th March 2020
papers at 11.00 AM in Sri
S.R.Raghoji Auditorium,
HKCCI, Kalaburagi
d. Notification of validly Sunday the 15th March 2020
accepted Nominations after the closure of Scrutiny
after Scrutiny
e. Last date for withdrawal Wednesday the 18th March
of Nominations 2020 up to 4.00 PM
(in person)
f. Notification of Final List Wednesday the 18th March
of Candidates 2020 at/after 5.00 PM
g. Date, Timing & Venue of Sunday the 29th March 2020
Polling from 8.00 AM to 5.00 PM in
Veershaiva Kalyan Mantap
Public Garden, Kalaburagi.
h. Counting of Votes Sunday the 29th March 2020
15 WP 226372/2020 &
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after the closure of Polling in
Chamber Building Complex
Super Market, Kalaburagi
i. Declaration of results After the Closure of
Counting
2.2. It is stated that the last day for filing of the
nomination papers was fixed on 14.03.2020 at
5.00 p.m.
2.3. In view of the notification issued by the Deputy
Commissioner, Kalaburagi District, dated
13.03.2020, on account of Covid-19 pandemic,
the continuation of election process was
stopped.
2.4. The Deputy Commissioner has specifically on
14.03.2020 written to the President of third
respondent that the second respondent not to
go ahead with the electoral process.
2.5. Subsequent thereto, on the relaxation of
norms, by way of letter dated 13.07.2020
issued by the Deputy Commissioner to the
16 WP 226372/2020 &
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third respondent, the election process was
again taken up. On 18.08.2020, Third
respondent issued a notice laying out revised
Calendar of Events for the purpose of election.
The revised Calendar of Events is extracted
hereinbelow for easy reference.
a. Scrutiny of Thursday the 3rd
Nomination papers September 2020 at 11.00
AM in Sri S.R.Raghoji
Auditorium, HKCCI, Super
Market Kalaburagi
b. Notification of Thursday the 3rd
accepted September 2020 after the
Nominations after closure of Scrutiny
Scrutiny
c. Last date for Monday the 7th
withdrawal of September 2020 upto
Nominations 5.00 PM
(in person
by the candidates)
d. Notification of Final Monday the 7th
List of Candidates September 2020 at/after
5.30 PM
3. It is aggrieved by the said revised Calendar of
Events, that the petitioners in all the petitions are
before this Court contending that:
17 WP 226372/2020 &
Connected Matters
3.1. As per the revised Calendar of Events, the
process of elections has been taken up from
the stage of scrutiny of nomination whereas
according to the petitioners, since the process
of election was stopped on the date on which
the nomination papers were to be filed, it
should have been taken up from that stage
and not from the stage of scrutiny, in other
words one day's opportunity is required to be
provided for collection and filing of nomination
papers.
4. The petitioners initially have sought for following
reliefs.
4.1. A writ of Certiorari by quashing the order
dated 30.07.2020 bearing No.Kamm/
chuna/sama/ 2019-20 passed by the 1st
respondent found at Annexure-C and also
quash the consequential notice dated
18.08.2020 bearing No.HKCCI/2020-
21/1017 found at Annexure-D issued by
18 WP 226372/2020 &
Connected Matters
the 3rd respondent based on order dated
30.07.2020;
4.2. A writ of Mandamus to respondent No.1 by
directing him to pass suitable
directions/orders to reschedule the
calendar of events for the post of office
bearers and members to the Managing
Committee of Hyderabad Karnataka
Chamber of Commerce and Industry,
Kalaburagi by fixing the date of
nomination and allow this writ petition
with costs and grant such other reliefs as
this Hon'ble Court may deem fit to grant in
the circumstances of this case.
5. Subsequently, an amendment application came to be
filed on 06.11.2020 to bring on record certain
subsequent facts as also for additional prayer as
prayer No.(3), which is extracted for easy reference.
Prayer No.(3): Issue a writ of certiorari by
quashing the order/permission bearing No.
Kum/Election/General /82/2019-2020 dated
03.11.2020 passed by 1st respondent found
at Annexure-F.
19 WP 226372/2020 &
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6. On service of notice, third respondent has entered
appearance and filed his detailed objection.
According to the respondent No.3:
6.1. The order of the Deputy Commissioner was
received by the third respondent on
14.03.2020 at 5.31 p.m. by which time, the
time for filing of the nomination being 5.00
p.m. had already elapsed and there was
nothing which prevented the petitioners from
filing their nomination forms before 5.00 pm, if
they so wanted to.
6.2. Since the order of the Deputy Commissioner
was received post the lapsed time prescribed
for filing of the nomination, it is only from the
subsequent stage that the electoral process
was to be taken up.
6.3. It is for this reason that on 15.03.2020,
Secretary HKCCI, issued a notice to all the
members of the third respondent stating that
20 WP 226372/2020 &
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nomination process has been completed and it
is the stage from scrutiny of nomination papers
up to polling on 29.03.2020 which is postponed
thereby clearly indicating that there is no
nomination papers which would be received
post that day.
6.4. As soon as the norms were relaxed, third
respondent on 23.07.2020 wrote to the Deputy
Commissioner seeking his permission to
continue the electoral process which was
granted on 13.08.2020 and it is thereafter, the
revised notice came to be issued on
18.08.2020 till which time, the petitioners kept
quite and it is only thereafter they have filed
the above writ petitions on 01.09.2020 with
the sole intention of delaying the matter.
6.5. The petitioners are hand in glove with second
respondent-President of HKCCI and the filing of
the writ petitions is to delay the electoral
21 WP 226372/2020 &
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process so as to enable the second respondent
to retain his post as the President for a longer
time than permitted.
6.6. The respondent No.3 would not come within
the purview of State. By relying upon the
decision of the Apex Court in the case of
Ramakrishna Mission and Another vs.
Kago Kunya And Others in Civil Appeal
No.2394/2019, more particularly paragraph
No.31 thereof, the said paragraph is
reproduced for easy reference.
"31. Before an organisation can be held to
discharge a public function, the function must
be of a character that is closely related to
functions which are performed by the State in
its sovereign capacity. There is nothing on
record to indicate that the hospital performs
functions which are akin to those solely
performed by State authorities. Medical
services are provided by private as well as
State entities. The character of the
organisation as a public authority is
22 WP 226372/2020 &
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dependent on the circumstances of the case.
In setting up the hospital, the Mission cannot
be construed as having assumed a public
function. The hospital has no monopoly
status conferred or mandated by law. That it
was the first in the State to provide service of
a particular dispensation does not make it an
'authority' within the meaning of Article 226.
State governments provide concessional
terms to a variety of organisations in order to
attract them to set up establishments within
the territorial jurisdiction of the State. The
State may encourage them as an adjunct of
its social policy or the imperatives of
economic development. The mere fact that
land had been provided on a concessional
basis to the hospital would not be itself result
in the conclusion that the hospital performs a
public function. In the present case, the
absence of State control in the management
of the hospital has a significant bearing on
our coming to the conclusion that the hospital
does not come within the ambit of a public
authority."
23 WP 226372/2020 &
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6.7. On the above grounds, it is contended that the
writ petitions are required to be dismissed.
7. Sri Arunkumar Amargundappa, learned counsel for
second respondent President would support the
cause of the petitioners by contending that each and
every member of the society ought to be given an
opportunity to file his nomination papers. In the
present case, it is by virtue of the order of the
Deputy Commissioner that the nomination papers
could not be submitted. Therefore, the petitioners
ought to be given an opportunity to file their
nomination papers.
8. Smt. Anuradha M. Desai, learned Government
Advocate on enquiry, as regards the stand of the
first respondent-State regarding above controversy
would submit that the notification has been issued by
the Deputy Commissioner in a proper and required
manner. It is for the parties to follow the said
notification, any dispute that the petitioners and
24 WP 226372/2020 &
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second and third respondents would have inter se
would have to be resolved among themselves and
State is not having any role to play.
9. Heard Sri Vishwakarmaraj Nayak, learned counsel
for the petitioners; Smt. Anuradha M. Desai, learned
Government Advocate for first respondent-State; Sri
Arunkumar Amargundappa, learned counsel for
second respondent; Sri Amaresh S. Roja, learned
counsel for the third respondent. Perused the
papers.
10. On the basis of the pleadings filed and the
submissions made by the counsel, the points that
would arise for consideration of this Court are that:
10.1. Whether, third respondent would come
within the purview of meaning of State
under Article 12 of the constitution and be
amenable/subject to writ jurisdiction?
25 WP 226372/2020 &
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10.2. Whether the petitioners were prevented
from filing nomination papers?
10.3. Whether the petitioners ought to be
provided with an opportunity of
submitting their nomination forms?
10.4. What order?
11. I answer the above points as under.
12. Point No.1: Whether, third respondent would
come within the purview of meaning of State
under Article 12 of the constitution and be
amenable/subject to writ jurisdiction?
12.1. Sri Amaresh S. Roja, learned counsel for third
respondent vehemently argued that
respondent No.3 being a society registered
under Karnataka Societies Registration Act,
1960, would not come within the purview of
State and within the meaning of Article 12 of
the Constitution of India, and therefore,
26 WP 226372/2020 &
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respondent No.3 would not be amenable to the
writ jurisdiction of this Court and in this
regard, he relied upon the decision of the Apex
Court in the case of Ramakrishna Mission
(supra) relevant paragraph has been extracted
hereinabove.
12.2. It is not in dispute that the respondent No.3,
Hyderabad-Karnataka Chamber of Commerce
and Industries, Kalaburagi is a representative
organization of all the industries and
commercial entities in the Hyderabad-
Karnataka region. The function of the said
organization is to cater to the needs and
requirements of its members, to place the
grievances of its members before the State
and to recommend policy changes as also to
recommend any suggestions for the purpose of
better and effective operation of industries and
commerce in the Hyderabad-Karnataka region.
27 WP 226372/2020 &
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12.3. Though the respondent No.3 by itself is not a
state or a government organisation, what is
required to be considered herein is character
and functioning of respondent No.3 by way of
representing the industries and commerce, in
the Hyderabad-Karnataka region would it
amount to discharge of public functions, I am
of the considered opinion, that the respondent
No.3, is discharging essentially public
functions, so as to represent a larger gamut of
industries and commerce in the said area. For
the said purpose, it is not required that there is
any control exercised by the public authority
on respondent No.3. The function of
respondent No.2 effecting the defined class of
people namely the members of the Respondent
no.3 if not the general populace in and around
Hyderabad-Karnataka region as also beyond
that region, I am of the considered opinion,
that respondent No.3 would come within the
28 WP 226372/2020 &
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meaning of authority discharging public
functions or discharging functions of a public
organization. in coming to the above
conclusion I'am supported by the decisions of
the apex court in
12.4. ANDI MUKTA SADGURU SHREE MUKTAJEE
VANDAS SWAMI SUVARNA JAYANTI
MAHOTSAV SMARAK TRUST AND OTHERS
VS. V.R.RUDANI AND OTHERS reported in
(1989) 2 SCC 691 wherein at Para 22, it has
been held as under:
"22. Here again we may point out that
mandamus cannot be denied on the ground
that the duty to be enforced is not imposed by
the statute. Commenting on the development
of this law, Professor De Smith states: "To be
enforceable by mandamus a public duty does
not necessarily have to be one imposed by
statute. It may be sufficient for the duty to
have been imposed by charter, common law,
custom or even contract." We share this view.
The judicial control over the fast
29 WP 226372/2020 &
Connected Matters
expanding maze of bodies affecting the
rights of the people should not be put into
watertight compartment. It should remain
flexible to meet the requirements of
variable circumstances. Mandamus is a
very wide remedy which must be easily
available 'to reach injustice wherever it is
found'. Technicalities should not come in
the way of granting that relief
under Article 226. We, therefore, reject the
contention urged for the appellants on the
maintainability of the writ petition."
12.5. RAMESH AHLUWALLA VS. STATE OF
PUNJAB AND OTHERS reported in (2012)
12 SCC 331, wherein at Paras 12 and 13, it
has been held as under:
"12. We have considered the
submissions made by the learned
counsel for the parties. In our opinion, in
view of the judgment rendered by this
Court in Andi Mukta Sadguru Shree
MuktajeeVandas Swami Suvarna Jayanti
Mahotsav Smarak Trust, there can be no
doubt that even a purely private body,
30 WP 226372/2020 &
Connected Matters
where the State has no control over its
internal affairs, would be amenable to
the jurisdiction of the High Court under
Article 226 of the Constitution, for
issuance of a writ of mandamus.
Provided, of course, the private body is
performing public functions which are
normally expected to be performed by
the State Authorities.
13. In the aforesaid case, this Court was
also considering a situation where the
services of a Lecturer had been
terminated who was working in the
college run by the Andi Mukta Sadguru
Shree MuktajeeVandas Swami Suvarna
Jayanti Mahotsav Smarak Trust. In those
circumstances, this Court has clearly
observed as under (V.R.Rudani case.
SCC pp.700-701. Paras 20 & 22):
"20. The term "authority" used
in Article 226, in the context, must
receive a liberal meaning unlike the
term in Article 12.
Article 12 is relevant only for the
purpose of enforcement of
31 WP 226372/2020 &
Connected Matters
fundamental rights under Article
32.
Article 226 confers power on the
High Courts to issue writs for
enforcement of the fundamental
rights as well as non-
fundamental rights. The words
"any person or authority" used
in Article 226 are, therefore, not
to be confined only to statutory
authorities and instrumentalities
of the State. They may cover any
other person or body performing
public duty. The form of the
body concerned is not very much
relevant. What is relevant is the
nature of the duty imposed on
the body. The duty must be
judged in the light of positive
obligation owed by the person or
authority to the affected party.
No matter by what means the
duty is imposed, if a positive
obligation exists mandamus
cannot be denied.
32 WP 226372/2020 &
Connected Matters
22. Here again we may point out
that mandamus cannot be denied on
the ground that the duty to be
enforced is not imposed by the
statute. Commenting on the
development of this law, Professor
de Smith states: "To be enforceable
by mandamus a public duty does
not necessarily have to be one
imposed by statute. It may be
sufficient for the duty to have been
imposed by charter, common law,
custom or even contract." We share
this view. The judicial control over
the fast expanding maze of bodies
affecting the rights of the people
should not be put into watertight
compartment. It should remain
flexible to meet the requirements of
variable circumstances. Mandamus
is a very wide remedy which must
be easily available "to reach
injustice wherever it is found".
Technicalities should not come in
the way of granting that relief
under Article 226. We, therefore,
33 WP 226372/2020 &
Connected Matters
reject the contention urged for the
appellants on the maintainability of
the writ petition."
The aforesaid observations have been
repeated and reiterated in numerous
judgments of this Court including the
judgment in Unni Krishnan and Zee
Telefilms Ltd.(supra), brought to our
notice by the learned counsel for the
Appellant Mr.Parikh."
12.6. Thus, I answer point No.1 by holding that,
third respondent HKCCI essentially
discharging public functions and its
actions affecting the general populace
would come within the purview of
meaning of State under Article 12 of the
constitution and be amenable/subject to
writ jurisdiction of this Court.
13. Point No.2: Whether the petitioners were
prevented from filing nomination papers?
34 WP 226372/2020 &
Connected Matters
Point No.3: Whether the petitioners ought to
be provided with an opportunity of submitting
their nomination forms?
13.1. Both the above points being related to each
other are considered and answered together as
under:
13.2. The aspect urged to be considered by this
Court is as regards whether the petitioners in
all the aforesaid writ petitions were prevented
from filing their nomination forms on
14.03.2020 on account of Covid-19 pandemic
and the order passed by the first respondent,
dated 14.03.2020. Any action prior to
14.03.2020 would not be relatable to the order
of 14.03.2020 or Covid-19 pandemic.
However, any action taken post 14.03.2020
including the notification dated 18.08.2020
notifying the revised calendar of events would
35 WP 226372/2020 &
Connected Matters
have to be considered with reference to order
of Deputy Commissioner dated 14.03.2020.
13.3. Admittedly, the nomination forms were issued
from 11.03.2020 to 14.03.2020, that is from
11.00 a.m. to 5.00 p.m. and the last date for
filing of nomination papers was 14.03.2020 up
to 5.00 p.m., firstly there being a contradiction
in these two dates, inasmuch as when the
forms were to be issued till 5.00 p.m. on
14.03.2020, the filing of nomination forms
would not also not end at 5.00 p.m. there
ought to have been a time gap between the
issuance of the last nomination form and filing
of the nomination papers. In fact by way of
calendar of events, the petitioners would have
applied for and obtained the nomination forms
till 5.00 p.m. on 14.03.2020.
13.4. This Court would have to take a judicious
notice of Covid-19 pandemic, more particularly
36 WP 226372/2020 &
Connected Matters
in the district of Kalaburagi, more so, when the
first Covid-19 case was reported from this city
and on those days there was fear of Covid-19
among the general public.
13.5. The contention of the Learned counsel for the
respondent No.3 can not be accepted that
merely because of Deputy Commissioner order
was received by the respondent No.3 at 5.31
p.m. that is after the time for the petitioners to
collect and file the nomination forms.
13.6. The letter of the Deputy Commissioner
addressed to respondent No.3 received by the
respondent No.3 at 5.31 p.m. was issued by
the Deputy Commissioner on he coming to
know of the elections being held by the
respondent No.3.
13.7. It is not this letter which is of relevance as
sought to be contended by Mr Amaresh Roja,
what is of relevance is the order dated
37 WP 226372/2020 &
Connected Matters
13.03.2020 passed by the Director of Health
and Family Welfare Department, wherein it had
been clearly stated that from 14.03.2020,
00.00 hours certain activities have been
prohibited for a period of one week. This was
also followed up by further orders issued by
the Health and Family Welfare Department.
Thus, what is to be considered is the order
dated 13.03.2020 imposing certain prohibition
on activities from the midnight of 14.03.2020
i.e. to say that the petitioners and or any other
person could not come out of their house on
14.03.2020 so as to collect their forms and
submit their forms more so when as per the
calendar of events the same is required to be
done 'in person'. Due to such a prohibition
only some of the candidates have filed their
nominations prior to that day, the specific
order of the Deputy Commissioner was
received by the respondent No.2 at 5.31 p.m.
38 WP 226372/2020 &
Connected Matters
cannot be a ground for respondent No.3 now
to contend that the filing of the nomination
closed at 5.00 p.m. and therefore, the order
received on 5.31 p.m. did not come in the way
of petitioners from filing of their nomination
papers.
13.8. I answer Point No. 2 and 3 by holding that
the order which came in the way of
petitioners is order dated 13.03.2020
which imposed prohibition from midnight
of 14.03.2020. Thus on 14.03.2020, the
petitioners being unable to apply for
receiving nomination papers and or
submit the nomination papers it would be
required that an opportunity is to be
afforded to the petitioners and similar
situate persons of third respondent
society to collect and file their
nomination.
39 WP 226372/2020 &
Connected Matters
13.9. While arriving at the above conclusion, I am
also conscious of the above fact that there
would be a delay in holding the elections. Such
a delay is negligible as compared to the
protection of the electoral rights of the
members of society to participate in the
electoral process of respondent No.3.
13.10. The delay if any from now on can be capped at
one day from the date of electoral notification
since, only activities of 14.03.2020 having
been prohibiting further action of respondent
No.3 could commence from activities
scheduled to take place on 14.03.2020 and
proceed there from. The time period between
each calendar of events can also be retained as
that mentioned in the notification dated
06.03.2020.
13.11. As such the revised calendar that could be
issued by the Retuning Officer is as under of
40 WP 226372/2020 &
Connected Matters
course the dates could vary on various factors,
however the returning officer is directed to
finish the process as soon as possible without
any undue delay.
a. Issue of Nomination Forms 30th January 2021 from 11.00
and Filing of Nomination AM to 5.00 PM
Papers (in person)
b. Last date for filing of 30th January 2021 up to 5.30
nomination papers PM
c. Scrutiny of Nomination 31st January 2021 at 11.00 AM
papers in _______ (to be fixed)
d. Notification of accepted Sunday the 31st January 2021
Nominations after Scrutiny after the closure of Scrutiny
e. Last date for withdrawal of Wednesday the 3rd February
Nominations (in person) 2021 up to 4.00 PM
f. Notification of Final List of Wednesday the 3rd February
Candidates 2021 up to 5.00 PM
g. Date, Timing & Venue of Sunday the 14th February 2021
Polling from 8.00 AM to 5.00 PM in
____(to be fixed).
h. Counting of Votes Sunday the 14th February 2021
after the closure of Polling in
_____ (to be fixed)
i. Declaration of results After the Closure of Counting
14. What order?
In terms of the discussion made above, the writ
petitions are partly allowed. The petitioners are
permitted to collect and file their nomination papers
as per the time schedule that may be fixed in the
41 WP 226372/2020 &
Connected Matters
notification to be issued. The Retuning Officer/
Secretary, respondent No.3 shall issue necessary
notification in terms of the aforesaid discussion on or
before 22.01.2021. Further electoral process to take
place as per the notification to be issued.
Sd/-
JUDGE
VNR
